This Day in Liberal Judicial Activism—April 28

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President Obama and Sonia Sotomayor in 2009 (Jewel Samad/AFP/Getty)

2001—Senate Democrats convene at a resort to develop a strategy to escalate their fight against President George W. Bush’s prospective judicial nominees. High on their list is launching an unprecedented campaign of partisan filibusters of lower-court judicial nominations.


Senator Jim Jeffords’s decision weeks later to join the Democratic caucus will give the Democrats a Senate majority and enable them to shelve the filibuster weapon. But in 2003, after Republicans regain control of the Senate, Democrats will unleash their campaign. Over a period of two years, ten of President Bush’s appellate nominees will endure a total of 20 defeated cloture motions.

2009—In a terribly muddled speech to the ACLU of Puerto Rico, Second Circuit judge Sonia Sotomayor offers a blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions.

Nominated a month later to the Supreme Court by President Obama, Sotomayor at her confirmation hearing will try to bamboozle Republican senators and the public about her views on this controversial issue. For example, in answer to a question from Senator Sessions, Sotomayor will declare, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Similarly, she responds to Senator Coburn, “I will not use foreign law to interpret the Constitution or American statutes.”

Only after the cameras are off, in her written responses to post-hearing questions (see point 6 here), will Sotomayor reveal that she believes that it’s fine for American judges to draw freely on foreign and international law.


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